The Review of Elective Home Education - Children, Schools and Families Committee Contents

Supplementary memorandum submitted by the Home Education Advisory Service

  I would like to thank the Select Committee for allowing me the opportunity to give evidence on the subject of elective home education at the hearing on Wednesday 14 October 2009. At the end of the time allowed I noted that you were kind enough to say that the Committee would be willing to consider further dialogue on matters that we were unable to raise during the hearing. Accordingly I am writing to ask the Committee to consider three issues that could not be addressed fully at the time. These are:

    — Comments on the additional evidence submitted to the Select Committee by Mr Badman

    — The Badman monitoring proposals and the United Nations Convention on the Rights of the Child (UNCRC)

    — Directors of children's services: their legal duty

  I do hope that there is still time for the Committee to be able to consider this information. Unfortunately the pressure of my work commitments has made it impossible for me to communicate with you before now. I remain deeply committed to home education and I continue to support home educators alongside my work for Roman Fields Brokerage Service, a new project that has been set up by Hertfordshire County Council's Children, Schools and Families Department.

  I mention this because the Roman Fields project provides individual education packages for children of school age who have behavioural, emotional and social difficulties. Undoubtedly some of these children would have been among the small number who cause concern to the authorities when they end up in home education because there is literally nowhere else for them to go. I believe that they are relevant to the Committee's present inquiry and I would like to recommend the work of the Roman Fields Brokerage Service to you.

  As far as we know, the project is unique and it could well provide a model for use in other areas; similar projects might be of assistance to other local authorities as a means of helping children about whom there are justified concerns.


  Mr Badman's third round of data collection from local authorities in September 2009 was designed in part to support his earlier conclusion that the number of home educated children known to children's social care in some local authorities is disproportionately high relative to the size of the home education population. The results of his enquiries have had a direct influence on the review recommendations, so it is of considerable importance that both the data itself and Mr Badman's analysis should be fair and accurate. In giving evidence to the Committee Sir Paul Ennals remarked (14 October, Q84) that the request for more research should not be used to defer difficult decisions. I cannot emphasise strongly enough that we are not asking for more research; we are asking simply for an assurance that the information used to justify the review's proposals should be both fair and accurate. We are disturbed to find that the September data collection and its conclusions fail both of these criteria.

  It is a matter of grave concern to home educators that Mr Badman's hastily-assembled September statistical exercise contains some serious errors and parents are very troubled about the fact that there does not appear to be any avenue by which their concerns may be communicated to the Select Committee. Some information from freedom of information (FOI) requests on the September data collection has now been obtained by home educators and Mr Badman's conclusions have been scrutinised by experts. Although there are are as yet only a small number of responses there are enough to cast grave doubt on the reliability of the data in Mr Badman's September exercise. We would like to ask the Committee to consider the following points:

The September data and its analysis: faults in Mr Badman's methodology

  a)  Mr Badman is guilty of misusing statistical terms in his information to the Select Committee dated 9 October 2009. He states in the results (paragraph 1) that local authorities (LAs) responded voluntarily. This means that they were self-selecting and were not, therefore, a "representative sample" of all LAs in England as he states in paragraph 5. It is reasonable to infer that the LAs which chose to respond would be more likely to be those with greater concerns (or the ones with a greater degree of institutional prejudice) than the ones which did not respond. If this were the case the negative tendencies will have been overstated. Data from all LAs would therefore be needed to give a fair and balanced picture.

  b)  Mr Badman gives five reasons why the LAs did not respond to specific questions (paragraph 5) but he gives no figures for these. It would have been a simple matter to have included the actual figures for each reason and this information is necessary in order to put the findings into their proper context. Home educators are wondering why Mr Badman has suppressed this information.

  c)  Mr Badman states (paragraph 5) that the figures have been quality assured by a DCSF statistician. This assurance gives no guarantee that the raw data itself is accurate, and the information from LAs obtained via FOI requests has shown already that it is faulty. Mr Badman has used unsound data in order to lend weight to his earlier conclusions and this is completely unacceptable.

Mr Badman's results

Child Protection Plans (CPPs)

  Mr Badman states (paragraph 7) that LAs were asked for information about the number of CPPs relating to electively home educated (EHE) children compared with the whole population of children. His assertion that the number of EHE children with a CPP is double that found in the whole population of children was discussed in the Select Committee hearing on Monday 12 October. This claim is mistaken as he has made an error in his calculations. For an expert analysis please see the brief paper Observations on Home Education Statistics (Appendix 1 at the end of this document).


  a)  Table 2 in Annex 1 of Mr Badman's findings shows how the LAs were asked to provide information about the number of EHE children who were not receiving a suitable education. The LAs were asked to state whether the figures they gave were actual or estimated, but in section 10 of his findings they are all presented as actual figures. It would be helpful to have some idea how many figures were actual and how many were estimations.

  b)  Despite requests from HEAS Mr Badman declined to investigate the problem of LAs acting illegally towards home educating families. HEAS receives calls for help regularly from families who have had very unsatisfactory encounters with LA staff. It is likely that some of the small proportion of children who are said to be receiving inadequate provision are not being judged fairly. An examination of individual cases would be necessary in order to ascertain the reliability of this data.

  c)  There is no legal definition of "full-time" education with regard to EHE. LAs are making subjective judgements and it follows that resulting data cannot be regarded as robust.

School Attendance Orders (SAOs)

  a)  Although 210 children in the 74 LAs are deemed to be not receiving any education, Mr Badman's figures show that only 73 SAOs were issued. He notes that there is a relatively low usage of these but it begs the question as to why some LAs are asking for greater powers when they are not using the powers that they already have.

  b)  26 SAOs were issued by one of the 18 LAs which reported issuing them in respect of EHE children. It would be helpful to know whether or not this was the same LA that had eight CPPs for EHE children; if so, this could indicate either that this LA is particularly draconian or that it is in an area which has significant social problems. It is unacceptable that no attempt has been made to explain this statistical outlier which accounts for one-third of the figures.

Not in Education, Employment or Training (NEET)

  a)  The fact that Mr Badman asks only about EHE young people who are NEET further demonstrates that his investigation is biased. He is not interested in achieving a balanced view of the outcomes.

  b)  Mr Badman asked the LAs for the figures from the Connexions annual survey of Year 11 leavers which relate to EHE young people. He referred to the NEETs data as "stark" (12 October, Q37—the uncorrected transcript reads "needs" but the video archive confirms that it should read "NEETs") but he seems to be unaware of the fact that the data on EHE leavers is very patchy.

  An internet search reveals that some local Connexions websites state clearly that their data relates to mainstream schools only. Some of them do not hold data for other settings and the data that they can provide is not consistent across the country. Information given to HEAS by many families over the years has shown that few home educators make use of the services provided by Connexions; as a result, Connexions has very little first-hand knowledge of EHE young people. Further, we do not know whether or not Connexions makes an accurate distinction between bona fide home educators and young people who are out of school for other reasons.

  LAs themselves are the source of most of the data for the Connexions survey and they do not have access to information about all home educated leavers. Quite apart from the fact that not all the EHE leavers are known to them, many LAs do not seek information about all those who are known to them in their final few months of compulsory education. One parent comments: "When I heard about Mr Badman's call for supplementary evidence I tried to update my LA with the destinations of my two sons. Both left home education in 2008, one to go to college and the other to work full-time. I was told that the LA does not deal with young people when they reach 16 and my information was refused. So my sons will be recorded as NEET when they are not in this category; I suspect that many others will be in the same position."

  c)  These facts show that the evidence base for the figures shown in Mr Badman's findings at Annex C is highly suspect; further, the questionable information on which it is based is from a mere 47 of a possible 150 LAs. 20 of the 47 LAs who answered this question have replied to home educators' FOI requests to date and their figures and comments are shown in Table 1 (Appendix 2 below). The number of responses is small because the FOI requests have been made only very recently, but enough comments have been made to show consistently that Mr Badman's question about NEETs cannot be answered with any degree of accuracy.

  d)  Further, Mr Badman makes the error of not comparing like with like. 13 of the 47 LAs who "were able to provide information" have stated openly that the figures are unknown or unreliable, but Mr Badman goes on to compare this small set of inadequate data with the national figure. This comparison is unacceptable and it has the effect of portraying home education in the worst possible light.

Missing Children (Runaways)

  a)  Although "missing children (runaways)" in this context has a precise definition which Mr Badman quotes in his document, it is clear from the responses to the FOI requests (Table 2, Appendix 2 below) that the figures from the LAs include children who have moved away from the area with their families. Families who move out of an area have no obligation to inform the LA and their children are not "runaways".

  b)  Some LAs stated that "missing" children were retained on the records indefinitely and this procedure would result in the inclusion of children who were now adults. Given that the data is demonstrably confused and unreliable it would be highly improper to draw any conclusions at all from it.


  Home educators have expressed concern that time constraints meant that the legal implications of the registration and monitoring proposals were not raised when oral evidence was given to the Select Committee.

  HEAS has been advised that the proposals for universal compulsory registration and monitoring of all home educated children would require changes to be made to primary legislation; further, the proposals constitute an infringement of a significant number of the rights that are accorded to young people by the UN Convention on the Rights of the Child. While it is accepted that major concerns for a vulnerable child's welfare would allow for these rights to be suspended the same could not be said in the majority of cases where there is no cause for concern at all. Indeed, a civil servant who was conducting one of the recent DCSF investigations into home education observed in a meeting with HEAS that he did not think that ministers were considering the imposition of compulsory visits, adding that under privacy and human rights legislation he thought that this was unlikely to be possible even if they wished to do so.

  Monitoring all home educating families by mandatory home visit represents an arbitrary intrusion into the private life of each home educated child and his/her family. If there is no evidence of any problems this is not a proportionate response to a family's desire to make private arrangements for the education of their children. To judge that children might be at risk in their own homes simply by virtue of the fact that they are not in school would violate their rights under Article 16 of the UNCRC which states that:

    No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. The child has the right to the protection of the law against such interference or attacks.

  Article 12 of the UNCRC allows the child the right to be heard. This carries within it the right to remain silent. Enforced inspection with an automatic right of access to the child is in complete contradiction to Article 12:

    States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

  Article 9 governs the child's right not to be separated from his or her parents. If local authority officers were empowered to insist on interviewing the child alone without any prior independent scrutiny of their reasons for so doing there would be a breach of Article 9:

    States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

  The Home Education Review does not specify any procedure for appeal against this arbitrary interference. Such a power should not be given to local authority officials to use as they see fit; abuses would be bound to occur when over-zealous officials believe that they are acting in the child's interests. Under current legislation officers of the local authority are able to insist on seeing the child if there are significant concerns for the child's safety and welfare, so there is no need for the LAs to seek further powers.

  Compulsory monitoring of home education would be contrary to the child's right to freedom of association as enshrined in Article 15:

    "States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others."

  Children would be forced to associate with local authority officers against their will although neither of the two grounds for restricting their freedom of association given in Article 15 would apply. Given that families whose integrity is unquestioned would still be forced to submit to compulsory inspection and monitoring, this would result in a breach of Article 15 on every occasion.

  Compulsory registration and monitoring would, in the majority of cases, override Article 3 of the UNCRC which states:

    In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

  Given that all the above rights of the child would have been violated it would be difficult to argue that compulsory monitoring could possibly be in the best interests of the child. It could also be argued that many children are educated at home because they have been failed by the same bureaucracy that is now seeking to invade their privacy, therefore it could not possibly be in their best interests to seek to drive them back into the school system.

  Finally it should be noted that Article 5 of the UNCRC states:

    States Parties shall respect the responsibilities, rights and duties of parents…to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

  It would not be possible for parents to fulfil their responsibility to guide their children in the exercise of their rights if they are prevented from being present while local authority representatives interview their children.


  Finally I would like to draw the attention of the Select Committee to a most crucial issue which has not been fully explored: what is the extent of the duty which is given to the directors of children's services by the current legislation?

  In their oral evidence to the Select Committee both Mr Badman (on Monday 12 October, Q2) and Peter Traves (on Wednesday 14 October, Q113) expressed the opinion that directors of children's services are personally responsible for ensuring the welfare of all children in their local authority areas.

  Nowhere in any of the legislation is this level of accountability given to directors of children's services or to any other holder of public office. The legislation governing the responsibilities of Directors of Children's Services is section 18 of the Children Act 2004. This legislation unites the functions of education, health and social services, insofar as they relate to children, under the direction of this individual but it does not put all children in the care of that individual.

  The legislation does not and cannot make this person individually responsible for the safety, education and wellbeing of each and every child in the area. This responsibility belongs to the parent of every child. Both Mr Badman and Mr Traves seem to have overstated their responsibilities; they are accountable for the actions of their staff and not for the actions of the citizens for whom their staff are providing a public service.

  It is a matter of grave concern to me and to Home Education Advisory Service that the entire review of elective home education and its recommendations are based on a false premise: namely, that the directors of children's services and their staff have a specific and personal responsibility in law towards each individual child to guarantee that they are safe and well. The relevant sections of the Children Act 1989, the Education Act 2002, the Children Act 2004 and the Education and Inspections Act 2006 all require general arrangements to be made with a view to promoting the safety and welfare of children. It was never the intention of the law to impose duties on individuals that are impossible to carry out.

  At a time when we hear that court hearings for care applications are taking 14 months and when care applications have risen by 47%, HEAS wishes to make a plea to the Select Committee for the restoration of common sense in the present investigation of home education. Mr Badman says—and I agree with him—that the great majority of home educated children give no cause for concern, but that a small proportion do: it would make a real difference if the public funds required for the implementation of his recommendations were instead to be targeted directly at the children who are known to be in need.

October 2009

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